Nickerson v. Nickerson

Alvey, J., delivered the opinion of this Court. This was an action of trover, instituted by the appellant against the appellee, for the conversion of a negro servant, alleged to be the property of the appellant, acquired by a parol gift from the appellee. The case was tried on the general issue plea of not guilty; and at the trial the appellant took three exceptions to the rulings of the Court. Two of the exceptions were taken to the granting of prayers at the instance of the appellee, and the other to the modification of a prayer propounded by the appellant.

And the sole question raised by these prayers is as to the legal sufficiency of the supposed gift to pass the property in the servant. And we think, upon examination of the several prayers, that the Court below committed no error in its rulings in reference to them. The case was as fairly and as fully placed before ³³² the jury, by the prayer of the appellant, as modified by the Court, as the appellant could rightfully ask, and as the facts of the case would justify. Apart from the Act of 1763, ch. 13, which had exclusive reference to gifts of slaves, the law of gifts inter vivos, is plain and well settled.

A mere intention, or naked promise to give, without some act to transfer the possession, will not amount to a gift. To complete the investiture of title, there must be the mutual consent and concurrent will of both donor and donee, or trustee or guardian acting for the donee, in the acceptance of the gift. To be valid, such gifts can have no reference to the future, but must go into immediate and absolute effect. To the perfection of a parol gift of a chattel, delivery is essential, and without actual delivery no title passes.

Delivery, to be effectual, must be according to the nature and character of the thing given. There must be a parting by the donor with the legal power and dominion over it;